Foreign policy dissidents have the greatest interest in repealing the Logan Act, not wielding it as a weapon to shield ex-CIA Directors while heralding it as a clearly defined criminal statute.
The right to dissent from, and to work against, the official foreign policy of the U.S. Government is vital: foundational to Constitutional liberties. There is very little such dissent in the U.S. Congress, where many of the core tenets of the Foreign Policy Community (from CIA drone warfare and clandestine coups to steadfast support for Gulf State and Middle East tyrannies as well as Israel) enjoy overwhelming, at times virtually unanimous, bipartisan support. Former CIA Director John Brennan testifies before the House Permanent Select Committee on Intelligence on Capitol Hill, May 23, 2017 (Photo by Drew Angerer/Getty Images).
That is one of the reasons that — as I’ve said repeatedly — I am glad that there are now members of Congress such as Congresswomen Ilhan Omar of Minnesota and Rashida Tlaib of Michigan who so vocally and unflinchingly dissent from this general foreign policy orientation and especially from those policies which most members of Congress either cannot or do not want to denounce.
Whether or not one agrees with these two lawmakers on every issue, having members of Congress questioning and objecting to highly consequential foreign policies is inherently healthier than full-scale agreement or fear-driven acquiescence. Dissent strengthens all democracies. That is why I have relentlessly defended Congresswoman Omar, even in the face of less-than-ideally-phrased proclamations, from what I regard as bad faith accusations of bigotry and a lack of patriotism (just as I denounced moronic claims that Trump was a “traitor”): bad faith accusations of bigotry or treason are often designed to demonize attempts to question pieties and ostracize those who do it.
For that very reason, I was quite surprised to see that late Friday night, Congresswoman Omar, in response to something I wrote, defended not only former CIA Director John Brennan — who as Obama’s CIA Director presided over the bombing of numerous countries including Somalia — but also The Logan Act. The Logan Act is nothing more than an unconstitutional attempt to criminalize foreign policy dissidents, like her, and is so dangerous in the hands of the CIA, FBI and federal prosecutors precisely because it lacks any clear definition or meaning.
Despite this, Congresswoman Omar depicted that ancient statute not as what it is — an impossibly vague and overly broad attempt to criminalize the core Constitutional right to dissent — but instead as some kind of specific, precisely defined, and well-established precedent, the contours of which are clearly established and easily applied. None of that is true.
This 219-year-old statute is one of the most unconstitutional and dangerous laws in the U.S. Code. Because it has never been used to prosecute anyone, and was only used to obtain an indictment one time in its entire history — back in 1803, against someone who wrote an op-ed criticizing U.S. foreign policy toward France — nobody knows what it actually prescribes or allows because there is no binding judicial precedent interpreting what it means. It is precisely because it has never been used to prosecute anyone that there is no judicial clarity about what it means, and that’s how the U.S. Government wants it (for the same exact reason, the DOJ has never made good on its threats to prosecute any journalist who publishes classified information under the Espionage Act of 1917: they prefer to weaponize the fear of uncertainty regarding the law’s scope and application rather than prosecute journalists under it and thus risk a judicial ruling declaring it unconstitutional or inapplicable to journalists).
The wildly broad vagueness and lack of clarity is what makes it so dangerous to leave the Logan Act on the books. These are exactly the kinds of ambiguous laws that can serve as an abusive pretext in the hands of the FBI, empowering it to investigate anyone it wants under the rubric of this archaic, ambiguous law. A law can be so vague that it can be unconstitutional for that reason alone: a failure to clearly advise citizens of what is and is not legal violates the right of due process.
But while all such vague laws are dangerous, the Logan Act is particularly menacing to those who dissent from core U.S. foreign policy and are thus often accused of disloyalty, such as Congresswoman Omar. All members of Congress, but particularly foreign policy dissidents, should be working to repeal this ancient and repressive law, not wielding it as a weapon against adversaries and pretending that it is some highly specific, clear and valid criminal constraint on the conduct and speech of U.S. citizens.
The context of the exchange with Congresswoman Omar, and the key role played in it by former Obama CIA Director John Brennan, is necessary to understand Rep. Omar’s point. Far more importantly, this context illustrates the severe, ongoing dangers of allowing this dangerous law to fester on the books.
On Friday, reports emerged that, just days after Israeli Prime Minister Benjamin Netanyahu met with Saudi Crown Prince Mohammed bin Salman, a key Iranian nuclear scientist was ambushed and murdered by gunmen. U.S. officials told The New York Times that Israel was behind the assassination — which should be unsurprising given that Israel assassinated several senior Iranian nuclear scientists during the Obama years.
This news provoked indignation from MSNBC’s John Brennan, formerly Obama’s Director of the CIA, an agency heralded worldwide for its righteous opposition to assassinations. Along with condemning the assassination of this Iranian scientist as “a criminal act and highly reckless,” Brennan also used his tweet to send an explicit message to Iranian officials: urging them not to retaliate but instead to wait for the Biden administration to take over, promising the new U.S. administration would “respond against perceived culprits.”
In other words, Brennan, like many people (including myself), is concerned that the Trump administration and Israel are seeking to escalate tensions with Iran during the transition — either because they seek war with Tehran or, more likely, because they want to provoke a cycle of retaliation that would prevent the incoming Biden administration from re-implementing the Iran Deal which Trump nullified and which Israel vehemently opposes.
Thus, Brennan sought to subvert what he perceives as the current foreign policy of the U.S. Government — to provoke and punish Iran — by encouraging Iranian officials to ignore the provocation and therefore not derail efforts by the incoming U.S. administration to establish better relations once Biden is inaugurated:
There are so many amazing ironies to this Brennan statement. To begin with, it’s just stunning to watch Obama’s Chief Assassin — who presided over a global, years-long, due-process-free campaign of targeted assassinations, under which the official “kill list” of who was to live and who was to die was decreed by Judge, Jury and Executioner Brennan in a secret White House meeting that bore the creepy designation “Terror Tuesdays” — now suddenly posture as some kind of moral crusader against assassinations. I have denounced these Israeli assassinations as terrorism — both in the past and yesterday — but I have also denounced with equal vigor the Obama/Brennan global assassination program.
The audacity of Brennan’s moral posturing became even more evident as he tried to explain why his and Obama’s assassination program was noble and legal, while the one that resulted in Friday’s killing in Iran was immoral and criminal. After all, this is the same John Brennan who got caught red-handed lying about how many innocent civilians were killed by Obama’s global assassination program, and who even claimed the right to target American citizens for execution by drone without any transparency let alone due process: a right they not only claimed but exercised.
When you’re reduced to sitting on Twitter trying to distinguish your own global assassination program from the one you’re condemning, that is rather potent evidence that you are among the absolute last persons on earth with the moral credibility to denounce anything. That’s particularly true when you directed your unilateral assassination powers onto your own citizens, ending several of their lives.
But that’s the Trump era in a nutshell: the most bloodthirsty monsters and murderers successfully whitewash their own history of atrocities by deceiving people into believing that none of this was done prior to Trump, and that their flamboyant opposition to Trump — based far more in stylistic distaste for him and loss of their own access than substantive policy objections — absolves them of their own prior, often-worse monstrosities. Call it the David Frum Syndrome.
Yet another irony with this Brennan outburst was that the Israelis assassinated several Iranian civilian nuclear scientists during the Obama years — four by the count of the Eruasia Group’s Ian Bremmer — and yet, as Bremmer points out, Brennan never once harshly condemned it. Only with Trump as President is his indignation provoked. Indeed, Obama, on his way out the door, seemed to reward Israel by providing that foreign country with $38 billion in U.S. taxpayer-funded military aid, some of which was required to be used for U.S. weapons manufacturers who donated to Obama’s campaigns: the largest such aid package in history.
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But to me the most glaring irony — as I pointed out — is how similar is the transition message sent by Brennan on Friday to the Iranians when compared to the one sent by Gen. Michael Flynn to the Russians during the 2016 transition after the Obama administration sanctioned Moscow. The message of both Flynn and Brennan was virtually identical: don’t over-react or excessively retaliate: a new administration will soon take power and wants to work with you, so don’t do anything rash now that could prevent that from happening.
But the difference is that while Brennan was predictably celebrated for his message to the Iranians, with viral likes and re-tweets, Flynn was criminally investigated by Jim Comey’s FBI for his. After Comey, then the FBI Director, ordered the investigation into Flynn’s ties to Moscow closed at the start of 2017 due to lack of evidence, FBI agents deeply hostile to Trump seized on Flynn’s December, 2016, intercepted phone call with Russian Ambassador Sergey Kislyak — when Flynn was a national security transition official just weeks away from taking over — to continue the criminal investigation on the ground that he may have violated the Logan Act by attempting to subvert current U.S. foreign policy with his message to Moscow not to overreact and instead to wait for the new administration.
Upon seeing Brennan’s series of tweets, I noted the glaring parallel between the content of the 2020 transition message he sent to Iranian officials and the 2016 transition message which Gen. Flynn sent to the Russian Ambassador. I then asked rhetorically whether the FBI should investigate Brennan for possible violations of the Logan Act, while making explicitly clear that I believe that law is abusive and that neither Brennan nor Flynn had actually done anything criminal with their actions.
The expressly made point was that all this shows why The Logan Act is so dangerous and why it was so abusive of the Obama-era FBI to use this preposterous law as a pretext to criminally investigate Trump’s national security advisor:
In response to this claim, numerous people objected that the Flynn and Brennan situations were different for two reasons: 1) Flynn was a transition official when he sent his message while Brennan is merely a private citizen, and 2) there is a difference between speaking privately to foreign officials in a two-sided conversation and sending a one-sided message publicly.
But neither of those two objections make any sense. If anything, Flynn’s status as a national security transition officials gives him more of a right, not less, to send dissenting messages about U.S. foreign policy than a private citizen has (although both have that right). After all, the whole purpose of a national security transition team is to allow incoming Executive Branch officials to establish relationships with foreign counterparts in preparation for their new foreign policy. As even The Washington Post admitted about Gen. Flynn:
It would not be uncommon for incoming administrations to interface with foreign governments with whom they will soon have to work.
That’s why Biden himself and his national security officials are speaking to foreign leaders now, in the transition, before he is actually president. We expect a transition official like Flynn, or Biden’s aides, to speak to foreign officials about the policies they intend to pursue.
The other objection to my point — that there is a fundamental difference between speaking privately to foreign officials and sending a message publicly — is utter nonsense. Nothing in the law or in its history — including how Democrats have tried to use The Logan Act against GOP Senators — even remotely suggests this distinction.
Yet Congresswoman Omar, responding to my statements, decided to invoke that claim in order to defend Brennan from the suggestion that, like Flynn, he should be investigated under the Logan Act. Worse, to achieve this, she depicted this law as containing clear and established rules for what it does and does not criminalize. Namely, she insisted that a “one-sided communication . . . falls outside the statute’s scope”: Ilhan Omar @IlhanMN Legally, a tweet in this case wouldn’t constitute a violation of the Logan Act. It’s one-sided communication and even if directed at a foreign power, seems to fall outside the statute’s scope.
And even with a variety of interpretations, this episode isn’t a Logan Act violation.
Glenn Greenwald @ggreenwald @filchyboy Have you ever read the Logan Act? Do you have any idea what it says? It’s about undermining current US foreign policy - it doesn’t matter in the slightest if you do it privately or publicly.
https://t.co/qxRG0HENXr
November 28th 2020 129 Retweets2,182 Likes
I would love to know the basis for Rep. Omar’s pronouncements about the scope of a law that has never been used to prosecute anyone. From what learning did she derive her certainty about the “scope” of this old law and what it does and does not include? Literally everything known about the Logan Act — which is not much — negates her claims.
To begin with, there is absolutely nothing in the language of the Logan Act itself that even hints at this distinction she’s drawing between a “one-sided communication” and and a two-party exchange. To the contrary, this two-paragraph statute purports to criminalize not only direct communication but also anyone who “indirectly commences or carries on any correspondence or intercourse with any foreign government” with the intent to “defeat the measures of the United States.”
How does a message from a former CIA Director that is explicitly constructed as directed to Iranian officials, encouraging them to ignore current administration acts, not at least arguably qualify as “indirectly commenc[ing] or carr[ying] on any correspondence or intercourse with any foreign government”?
But to see how false Congressman Omar’s claim is about this law, just look at the only time it has even been used to indict anyone. The only indictment under this law occurred 217 years ago — in 1803 — when Francis Flourny, a Kentucky farmer, was indicted under the Logan Act not for entering into secret, two-sided communications with a foreign government, but for publishing an Op-Ed in his local Kentucky newspaper advocating western separatism as a way of opposing the belligerent war posture which the U.S. Government was pursuing with France (this law has from the start been used to threaten those who seek to tamp down U.S. Government war policies: the Logan Act itself is named after a Philadelphia Quaker and physician, Dr. George Logan, who infuriated some Washington officials by traveling to Paris, with the implicit support of his friend, then-Vice President Thomas Jefferson, to try to avert war between the U.S. and France).
The prosecution of Francis Flourny, as the Congressional Research Service (CRS) notes in its comprehensive history, did not proceed to a full prosecution only because the Louisiana Purchase rendered the separatism debate obsolete. So: literally the only indictment ever obtained under the Logan Act occurred in exactly the circumstance which Congresswoman Omar, citing nothing, claims clearly falls outside its scope: namely, when a citizen sough to undermine U.S. policy toward a foreign government through a one-sided communication. Congressional Research Service, Conducting Foreign Relations Without Authority: The Logan Act, Mar. 11, 2015
I would love to hear from Congresswoman Omar on this question: if Francis Flournoy is the only person ever indicated under the Logan Act in U.S. history for the “crime” of publishing an op-ed in his local paper due to his alleged intent to establish better relations with France, how could she possibly be so sure that a tweet published by John Brennan that is explicitly aimed at Iranian officials “falls outside the statute’s scope”? Flournoy’s communications was exactly the type of “one-sided communication” which the Congresswoman decrees with so much certainty that the Logan Act excludes. (See update below for a discussion of the recent discovery of a second, equally unsuccessful attempt, from 1853, to use the Logan Act).
Then there are the recent attempts to invoke the Logan Act — by her own Party — which also completely contradict Congresswoman Omar’s definitive pronouncements. In 2015, forty-seven Republican Senators sent an Open Letter to the Iranian Government warning it that the Iran Deal being negotiated by the Obama administration would not be binding on future administrations. This was purely a “one-sided communication”. The alleged crime of these Senators was not that they flew to Tehran and secretly met with Iranian officials nor spoke privately on the phone with them. It was just an Open Letter made publicly available: exactly like Brennan’s tweet to the Iranians.
Despite being precisely the sort of “one-sided communication” which Congresswoman Omar now assures us falls outside the scope of the Logan Act, numerous liberal law professors and Democratic activists demanded that all of the Republican Senators, and particularly their ringleader Tom Cotton, be prosecuted under the Logan Act for trying to subvert the Obama administration’s foreign policy toward Iran. Then-Secretary of State John Kerry declared the one-sided communication illegal. At least back then — just five years ago — these Democrats evidently did not share the Congresswoman’s view about what is and is not included in the scope of this statute.
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